Gordon Jones, Vicki Jones, Avista Corporation , United States of America (USDA Forest Service)

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Montana Water Court PO Box 1389 Bozcn~an R4T 59771-1389 (406) 586-4364 I-800-624-3270 (IN-STATE) FAX: (406) 522-4131 JUN 2 0 2014 Mowtassa Water Court I THE WATER COURT OF THE STATE OF MONTANA N CLARK FORK DIVISION BLACKFOOT RIVER - BASIN 76F CLAIMANTS: Gordon Jones; Vicki Jones OBJECTORS: Avista Corporation; United States of America (USDA Forest Service) I CASE 76F-110 (Part of') 76F 9778 1-00 76F 97782-00 76F 97783-00 NOTICE OF FILING OF MASTER'S REPORT You inay file a written objection to the Report if you disagree with the Master's Findings of Fact, Conclusions of Law, or Recommendations; or if there are errors in -the '.. Report. The above stainped date indicates the date the Master's Report was filed and mailed. Rule 23 of the Water Rights Ad-iudication Rules requires that written ob-jections to a Master's Report must be filed within 10 days ofthe date of the Master's Report. Because the Report was mailed to you, the Montana Rilles of Civil Procedure allow an additional 3 days be added to the 10 day ob-jection period. 1Z.ule 6(d) M.R.Civ.P. This means your objection must be received no later than 13 days from the above stainped date. If you file an objection, you must inail a copy of the objection to all parties on the Seivice List found at the end of the Master's Report. The original objection and a certificate of inailing to all parties on th(-:Service List must be filed with the Water Co~~rt-. If you do not file a tiinelv objection, the Water Couri, ~ i i l cpnclude that you agree with t k l content of this Master's Report. MASTER'S REPORT Endilzgs of Fact 1. Objector Avista Corporation's March 3, 20 14 status report says that Avista will withdraw its objections to claiins 76F 97781-00, 76F 97782-00, and 76F 97783-00 if claimants' inotion to amend those claiins is granted. 2. The United States wi.thdrew its ob-jection to all .three claiins wi-thout conditioi~. 3. Claimants filed a inotion to ainend claiins 76F 97781-00, 76F 97782-00, and 76F 97783-00 on July 30,2012, before this case was consolidated. Claimants filed another motion to ainend the claims, asking for the same relief, on January 3 1,20 14. l'l~is report addresses the 2014 filing. Aside lkoin Avista's status report, the objectors did not respond to the motion. 4. Claiinants ask that each of the three claiins be ainended to tit what claimant says is its historical and beneficial use and to change the priority date fioin November 5, 1964. to June 1, 1890. Purpose : 5. The three claims have an issue remark which says that the purpose is unclea~. because the claimed purposes include boll1 doillestic and mining. Claimant Gordon Jones' affidavit, attached to the motion to amend, says that historically the only purpose of the claims has been for mining purposes. Flow Rate: 6. The three claiins have flow rate issue remarks. Each claiin has a decreed flow rate of 2.50 cfs. The DNRC claiins exaininer calculated the average annual flow of thc sources of each of the claiins. Claiin 761: 9778 1-00 is on a stream which has a drainagc area of 485 acres (0.75 square mile). Applying the Orsbori~e formula, the average annual flow of 76F 9778 1-00 is 0.4 cfs. Claim 76F 97782-00 has a stream which drains 122 acres (0.19 square mile) and an average annual flow of 0.1 cfs. Claiin 76F 97783-00 drains 514 acres (0.85 square mile) and an average annual flow of 0.5 cfs. 7. The claim numbers in section IV(A) through (C) of claimants' motion are inaccurate. The best reading of what claimants intended is that claimant illoved to anicild the flow rate of claiin 76F 97782-00 froin 2.50 cfs 2 10 2.35 cfs and the l l o ~ rate ol'76F r 97783-00 to 2.25 cfs. 8. The points of diversion of thcse claims are in an area of heavy winter snow. The period of use (April 1 to November I ) of these claims shows that water was diverted during the warmer months. 9. While the flow rate issue remark is correct, it is based on a calculation of average annual flow. Clairnants7 measurements show that during some times of year, Wilson Creek can flow the claimed amount of 2.50 cfs. Priority Date: 10. The priority date November 5 , 1964, is the date the mining claims were patented by the United States. Claimants moved to change the priority dates of all three claims to June 1, 1890. 11. The exhibits attached to clajmants' motion show that there has been mining in in the vicinity of their places of use since about 1890. Most of the claims ~nentioned the historical articles are not on claimants' land. Many are lode claims which have different water requirements from placer mining. The historical use of water on what is now claimants' land was for placer mining. 12. Exhibit C to the motion is an undated historic narrative froin the Montana Department of Environmental Quality. Most of the narrative is not relevant to this case. The narrative mentions the Hopkins placer which was located near or upon the land claimants now own. The narrative does not give a start date for the Hopkins placer. Thc narrative mentions that some of the previous owners used dry land washing plants (which use air instead of water) to recover value:;. The narrative about the I-Iopltins placcr does no1 attempt to trace a continuous chain of operation or ow~ership. 13. Claimants' exhibits do not show an unbroken chain of ownership or water use on their property running back to 1890. Asserting that the mining claims have been in operation since the 1890s is not proof ol'l~istcrricalbeneficial use by clai~nants' predecessors in ownership. 14. Claiinants withdrew their objzctions to these claims. Conclusions ofLaw , 1 The Montana Water Court has jurisdiction to review all objections to temporary preliminary decrees. Section 85-2-233, MCA. 2. A properly filed Statement oi' Claim for Existing Water Right is priina facie proof of its content. Section 85-2-227, MCA. This prima facie proofinay be contradicted and overcoine by other evidence that proves an element of the prima facie claim is incorrect. This is the standard of proof whether the objectors are adverse to the claimants or are the claiinants objecting to their own claim. Rule 19, W.R.Adj.R. 3. The Water Court inay resolve issue remarl<sbased upon information in the claim file and obtained by the Court. Section 85-2-248(3), MCA. 4. The Water Court is required to weigh the information resulting in an issue remark and the issue remarl< against the claimed water right in ad-judicating the claim. $85-2-247(2), MCA. 5. For the flow ratcs, for claim 76F 9778 1-00, claimant did not move to change the flow rate. Although the average annual flow of Wilson Creek will not allow the use of 2.50 cfs year round, there are tiines wheii that inucli water is available. The flow ratc issuc reinarlc should be removed froin the abstract of claim 76F 97781-00. 6. Concerning the flow rates of claiins 76F 97782-00 and 76F 97783-00, claimants' inotion aslcs for a reduction in that element of thc claiins and can be granted without filrther proof. Rule 17(c), W.R.Adj .R. 7. Concerning the motion to change the priority date, claiinants have not proven a clear or unbroken chain of title or historic;al use of water for mining purposes before I.hc decreed priority date of November 5, 1964. 8. The court is not bound by stipulations or assertions of counsel or witnesses. See Allen v. Petrick, 69 Mont. 373, 380 ( 1 924). 9. The motion to change the priority dates fails for lack of substantial evidence. Recb>1/lmendat ions Change the flow rates of claims ?bI; 97782-00 and 76F 97783-00 as stated above. Reinove the issue reinarlts from the abstracts of the claims. Post-decree abstracts of the claiins are served with this report to confirm that the recommended changes have been made in the state's centralized record system. DATED this 30 day of -/uh/& , 2014. Water Master James J. DuBois, Attorney US Department of Justice 999 1gt" Street, South Terrace Suite 370 Denver, CO 80202 (303) 844-1 375 james.dubois@usdoj .gov Cory R. Gangle Gangle Law Firm, PC PO Box 669 Missoula, MT 59806 (406) 273-4304 cory@ganglelaw.net R. Blair Strong Paine, Hamblen, LLP 717 West Sprague, Suite 1200 Spokane, WA 99201 -3505 (509) 455-6000 r. blair.strong@painehambl en.con1 June 11,2014 Page 1 of 2 76F 97781-00 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM ' BLACKFOOT RIVER BASIN 76F IMPORTANT NOTICE , AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECREE. 76F 97781-00 Water Right Number: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE Version: GORDON JONES PO BOX 8492 BOISE, ID 83707 8492 Owners: VICKI JONES PO BOX 8492 BOISE, ID 83707 8492 NOVEMBER 5, 1964 Priority Date: Type of Historical Right: USE Purpose (use): NlllVlNG Flow Rate: 2.50 CFS Volume: THIS RIGHT IS LIMITED TO THE VOLUME OF WATER HISTORICALLY USED FOR IWllVlNG PURPOSES. Source Name: Source Type: WILSON CREEK SURFACE WATER Point of Diversion and Means of Diversion: ID - Govt Lot Otr Sec @ Twp I&g County 1 NENWNW 22 13N 10W POWELL Period of Diversion:APRlL 1 TO NOVEMBER 1 Diversion Means: HEADGATE APRIL 1 TO NOVEMBER 1 Period of Use: Place of Use: ID - Acres Govt Lot - - Qtr Sec & NENWNW 1 22 - Twp County 13N 10W POWELL - Remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THlS RIGHT FOR SEVERAL PLIRPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 97781-00 97784-00 97785-00 June 11,2014 76F 97781-00 Page 2 of 2 Post Decree Abstract THE FOLLOWING ELEMENTS WERE AMENDED BY THE CLAIMANT ON 0811 812006: PURPOSE, VOLUME. STARTING IN 2008, PERIOD OF DIVERSION WAS ADDED TO MOST CLAIM ABSTRACTS, INCLUDING THIS ONE. Page 1 of 1 Post Decree Abstract June 11,2014 76F 97782-00 POST DECREE ABSTRACT OF WATER RIGHT CLAIM BLACKFOOT RIVER BASIN 76F IMPORTANT NOTICE AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECREE. Water Right Number: 76F 97782-00 2 -- POST DECREE Status: ACTIVE Version: Owners: STATEMENT OF CLAIM VICKI JONES PO BOX 8492 BOISE, ID 83707 8492 GORDON JONES PO BOX 8492 BOISE, ID 83707 8492 NOVEMBER 5,1964 Priority Date: Type of Historical Right: USE Purpose (use): *Flow Rate: MINING 2.35 CFS Volume: THIS RIGHT IS LIMITED TO THE VOLUME OF WATER HISTORICALLY USED FOR MINING PURPOSES. Source Name: Source Type: UNNAMED TRIBUTARY OF WILSON CREEK SURFACE WATER ALSO KNOWN AS NORTH WILSON CREEK Point of Diversion and Means of Diversion: ID - Govt Lot Qtr Sec Set Twp County 1 SWSESW 15 13N 10W POWELL Period of Diversion:APRlL 1 TO NOVEMBER 1 Diversion Means: HEADGATE Period of Use: APRIL 1 TO NOVEMBER 1 Place of Use: ID Acres - -Govt Lot 1 Qtr Sec Set SWSESW 15 Twp County 13N 10W POWELL Remarks: THE FOLLOWING ELEMENTS WERE AMENDED BY THE CLAIMANT ON 08/18/2006: PURPOSE, VOLUME. STARTING IN 2008, PERIOD OF DIVERSION WAS ADDED TO MOST CLAIM ABSTRACTS, INCLUDING THIS ONE. June 11,,2014 Page 1 of 1 76F 97783-00 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BLACKFOOT RIVER BASIN 76F 1MPORTANT NOTICE AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER 1SSUANCE OF THE PREVIOUS DECREE. 76F 97783-00 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE GORDON JONES PO BOX 8492 BOISE, ID 83707 8492 Owners: VICKI JONES PO BOX 8492 BOISE, ID 83707 8492 NOVEMBER 5, 1964 Priority Date: Type of Historical Right: USE MINING Purpose (use): *Flow Rate: 2.25 CFS Volume: THIS RIGHT IS LIMITED TO THE VOLUME OF WATER HISTORICALLY USED FOR MINING PURPOSES. Source Name: Source Type: UNNAIVED TRIBUTARY OF WILSON CREEK SURFACE WATER ALSO KNOWN AS SOUTH WILSON CREEK Point of Diversion and Means of Diversion: ID Govt Lot Q t r Sec Set Twp & County 1 NWNWNW 22 13N 10W POWELL Period of Diversion:APRIL 1 TO NOVEMBER 1 Diversion Means: HEADGATE Period of Use: Place of Use: ID Acres - -Govt Lot 1 APRIL 1 TO NOVEMBER 1 Qtr Sec NWNWNW Set 22 Twp & County 13N 10W POWELL Remarks: THE FOLLOWING ELEMENTS WERE AMENDED BY THE CLAIMANT ON 08/18/2006: PURPOSE, VOLUIVIE. STARTING IN 2008, PERIOD OF DIVERSION WAS.ADDED TO MOST CLAIM ABSTRACTS, INCLUDING THlS ONE.

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